- 19-Apr-2025
- Healthcare and Medical Malpractice
Under Indian law, intended parents (the individuals or couple who seek to have a child through surrogacy) have specific rights and legal protections throughout the surrogacy process. These rights are primarily governed by the Assisted Reproductive Technology (ART) and Surrogacy (Regulation) Bill, 2020 (which is pending approval but is intended to regulate surrogacy in India) and the Indian Council of Medical Research (ICMR) Guidelines for ART Clinics.
Intended parents have the right to become the legal parents of the child born through surrogacy. Once the surrogacy agreement is executed and the child is born, the intended parents are recognized as the legal parents of the child, even though the child is biologically related to the surrogate mother.
The surrogate has no claim over the child once the baby is born, provided that the surrogacy agreement was executed correctly and in accordance with Indian law.
The birth certificate of the child will list the intended parents as the legal parents, and the surrogate will not be recognized as the mother.
Intended parents have the right to enter into a legal and binding surrogacy agreement with the surrogate. This agreement should clearly outline the terms and conditions, including:
In India, surrogacy agreements must be written contracts executed between the surrogate mother and the intended parents, and the agreement must be witnessed by legal professionals to ensure its validity.
Intended parents have the right to choose the medical facility and clinic for the surrogacy process, including the choice of healthcare professionals and the Assisted Reproductive Technology (ART) procedures. The surrogacy process typically involves embryo implantation and other assisted reproductive methods, and the intended parents have the right to control these decisions.
The intended parents have the right to confidentiality regarding their surrogacy arrangements. The surrogacy agreement ensures that personal details, medical history, and other private matters concerning the surrogate and the intended parents remain confidential, unless disclosure is required by law.
After the birth of the child, the intended parents are entitled to custody of the child without interference from the surrogate mother. The birth certificate is issued in the names of the intended parents, and they are considered the legal guardians of the child.
The surrogate mother cannot claim custody or visitation rights once the child is born unless a court order decides otherwise (e.g., in cases of disputes, abuse, or violation of the surrogacy agreement).
The process of birth registration ensures that the intended parents’ names appear on the birth certificate, affirming their parental rights.
The child born through surrogacy inherits the same legal rights as any biological child, including inheritance rights from both the surrogate mother (if she’s the biological mother) and the intended parents. This is based on the principle of equality before the law and ensures that the child’s legal status as the intended parents' child is not questioned.
Under the Indian law and the Surrogacy Bill, the intended parents have the right to have their parentage recognized in legal matters, such as immigration, adoption, inheritance, and other family law procedures. The parental rights are transferred to the intended parents through the legal framework provided by the surrogacy agreement.
While not specifically addressed in all surrogacy agreements, intended parents may be eligible for maternity or paternity leave depending on the jurisdiction and workplace policies. In India, maternity benefits are generally available to biological mothers, but intended parents (especially fathers) do not have legal entitlement to paid leave under the Maternity Benefit Act, 1961 unless they are also the biological parents.
In certain situations, intended parents may have the right to review or alter the terms of the surrogacy agreement, particularly if unforeseen circumstances arise. For example, if there are medical complications or changes in the intended parents' circumstances, the surrogacy agreement may need to be amended with the consent of all parties involved.
The Surrogacy (Regulation) Bill, 2020 mandates that surrogacy arrangements be ethically conducted and legally protected. Intended parents must comply with certain eligibility criteria:
This bill also ensures that commercial surrogacy (where surrogates are paid for carrying the child) is banned, while altruistic surrogacy (where the surrogate is not financially compensated beyond medical expenses) is allowed.
Indian law provides that once the child is born through surrogacy, the intended parents are granted full parental rights and legal recognition. The surrogate mother, having agreed to the terms of the contract, relinquishes her rights to the child once the birth is completed.
If a dispute arises over the child’s parentage, courts can intervene to ensure the best interests of the child are served, but parental rights of the intended parents are generally upheld under law.
Intended parents are protected from any legal consequences arising from the surrogate’s decision to withdraw consent or breach the surrogacy contract. Legal remedies, including compensation or breach-of-contract claims, are available to protect the interests of the intended parents.
A couple enters into a surrogacy agreement with a surrogate mother. After the child is born, the surrogate attempts to claim custodial rights, citing emotional attachment to the baby. The intended parents, armed with the legal surrogacy agreement, approach the court. The court recognizes the validity of the contract and grants custody to the intended parents, affirming their legal rights as the child's parents.
A surrogate mother demands additional compensation beyond what was agreed upon in the surrogacy contract. The intended parents, after consultation with their lawyer, go to court to enforce the terms of the contract. The court upholds the agreement, ensuring that the surrogate’s compensation is limited to the terms set forth in the legal document.
Under Indian law, intended parents have a range of rights and legal protections in surrogacy agreements, including the right to parental rights, custody, and legal recognition of parentage. These rights are safeguarded by legal frameworks such as the Surrogacy (Regulation) Bill, 2020 and existing family laws. Intended parents are entitled to clear, enforceable surrogacy agreements, and their rights to the child born through surrogacy are protected against challenges from the surrogate or others. The process ensures that the child’s welfare, as well as the intended parents' legal status, is respected.
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